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Articles Tagged with product liability

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By Kurt Maier, Partner
English, Lucas, Priest and Owsley LLP

amusement park Who hasn’t enjoyed a great ride at an amusement park in the summer months? It’s a staple of summer fun and entertainment for children, teens and adults. Your trip to an amusement park should be free of worry about accidents and injuries, but it’s becoming all too common to see serious injuries inflicted because of careless operation of amusement park rides.

There certainly are well-maintained amusement parks, and there are also those that are not. You probably won’t be able to tell which one you’ve chosen by looking at them.

Kentucky amusement parks have certainly had cases of serious injuries. The one that almost everyone remembers is the 2007 incident at Six Flags in Louisville (which has since closed). A 16-year-old girl was riding the Superman Tower of Power ride when a cable wrapped around her feet and severed them. The girl’s family sued the park.

At the Louisville Zoo, a small train designed for parents and their children crashed. One man had his leg pinned under the train and had a series of eight surgeries to repair the damage. He had missed 18 months of work at the time of the lawsuit. A small child had disfiguring face injuries, and many others were injured in other ways. The claims were eventually settled.

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By Bob Young, attorney
English, Lucas, Priest and Owsley, LLP

For the last year, cases have been working their way through the courts against Johnson & Johnson and their talc supplier, with plaintiffs who used their baby powder or Shower to Shower powder suing because they were diagnosed with cancer after long-term use of the products.

Last week, a jury handed down a landmark verdict against Johnson & Johnson on behalf of plaintiff Larry Lanzo and his wife. Lanzo had used Shower to Shower powder and other similar products for nearly 30 years, and developed mesothelioma, a type of lung cancer. Lanzo believes the disease came from inhaling the product during the past three decades of use.

The court ruled Johnson & Johnson must pay $117 million in damages, with $30 million of that going to Lanzo, and $7 million to his wife. The rest of the money – $80 million – will be paid in punitive damages.

Johnson & Johnson issued a statement saying it does not believe there is a link between its powder and mesothelioma.

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Where do you file a product liability lawsuit?

Most of the time, the answer is simple. You file it where the actionable issue occurred. If you live in Kentucky and that’s where the accident happened, it’s easy to determine you file your lawsuit in Kentucky.

Sometimes, there are multiple possibilities for where to file a suit. If the opposing party doesn’t like the plaintiff’s choice of court, the opposing party can ask for a dismissal of the case or, in some situations, a transfer. If the plaintiff disagrees with the trial court’s order regarding jurisdiction or choice of forum, the plaintiff can file an appeal.

Once the proper court has been decided, another possible issue is that of choice of law. Typically, this question arises when an issue could possibly be resolved according to the law of two or more states. However, sometimes, the choice of law question involves the law of differing nations.

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By Jessica Surber, Attorney
English, Lucas, Priest and Owsley, LLP

When a person is injured because of a defective or unreasonably dangerous product, he or she may be entitled to damages such as payment of medical expenses, reimbursement of lost wages, and compensation for pain and suffering.

Although it is the exception rather than the rule, there is also the possibility of punitive damages in some cases. In order to qualify for a punitive damages award, a plaintiff must show particularly egregious conduct on the part of the defendant (typically, the manufacturer, distributor, or retail seller of the product).

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In Simmerman v. Ace Bayou Corp., the parents of a three-year-old sued several parties following the death of their child, who became trapped in a beanbag chair. The parents filed a product liability action against the manufacturer of the allegedly defective chair, the department store where they purchased the item, and the manager of the store in Fayette County Circuit Court. In response to the lawsuit, the defendants removed the case to the U.S. District Court for the Eastern District of Kentucky in Lexington based upon diversity of citizenship. In general, a defendant may remove a case to federal court as long as the defendants are from different states than the plaintiff and the amount in controversy exceeds $75,000.

Next, the parents filed a motion to remand the case back to Fayette County Circuit Court. Although the store manager was a resident of Kentucky, the remaining corporate defendants have main corporate headquarters in other states. According to the plaintiffs, the Kentucky manager destroyed diversity and required the case to be tried in state court. The store manager, however, countered that she was fraudulently joined in the case solely to defeat federal diversity jurisdiction.

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Legal News GavelStryker is the maker of the Rejuvenate modular hip system. Many people who have had the Stryker modular hip system implanted have had it removed and replaced, and many of those have sued Stryker to seek compensation for injuries caused by the faulty hip system.

These cases have been making their way through courts and have been combined into several large cases. Cases are pending in state courts in New Jersey, Florida and several other states, and in federal court in Minnesota. To pay those injured by the hip system, Stryker established a compensation fund of $1.45 billion. That amount could grow as cases continue to mount against Stryker. More than 8,000 people have sued Stryker seeking compensation for injuries – but time is running out.

Those who are interested in obtaining a settlement from this fund have limited time to seek compensation, and need to consult with an attorney right away. The settlement date is November 3, 2014, so patients need to show that revision surgery occurred prior to that date to participate in the compensation fund.

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medical device labWhen a doctor or surgeon recommends a particular medical device, such as a hip replacement, you probably assume that the device has been tested thoroughly, that it is safe and proven to be an effective treatment for your ailment. But recent studies have shown that this really isn’t the case, and that patients should be prepared to do their own research into medical devices prior to accepting a doctor or surgeon’s recommendation.

News stories and medical studies since 2011 have indicated there are problems with the process the Federal Drug Administration (FDA) uses to review and approve medical devices. The most recent news stories indicate that the data the FDA says it requires is often missing.

The latest story is a report from international news agency Reuters by reporter Andrew Seaman. The story was published on September 29, 2014. That article says that two new studies both indicate that medical devices are not tested thoroughly enough before being approved for implantation in the human body. The two most recent studies were published in JAMA Internal Medicine. You can read one of the studies here.

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